The legal principle established is that after division, there would be no tarwad on behalf of which a divided member can sue.

1. This Second Appeal by the 1st defendant is from concurrent decrees setting aside an alienation and directing recovery of possession of property from him. The 3rd defendant is the mother of the plaintiff and defendants 4 and 5. In 1103 when the plaintiff and defendants 4 and 5 were minors, a partition deed Ext. A was executed between the 3rd defendant and her brother Narayanan Krishnan, the former acting as guardian of her minor children. Under the said deed, Narayanan Krishnan received a sum of money in lieu of his share of tarwad property and the property described in the plaint schedule thereafter belonged to the sub-tarwad of the 3rd defendant and her children. Defendants 3 and 4, the former acting as guardian of the plaintiff, executed a Nischaya patrom Ext. B dated 20.12.1106 whereunder the plaint property was conveyed to Narayanan Krishnan, reserving a life estate therein for the 3rd defendant. The latter and Narayanan Krishnan then jointly mortgaged the property to one Chellappan Pillai who assigned the same to the 1st defendant. Narayanan Krishnan and the 3rd defendant then sold the equity of redemption to the 2nd defendant and the latter transferred his rights to the 1st defendant. The plaintiff sought to set aside Ext. B on the ground that it was not supported by consideration or necessity binding on the sub-tarwad. The later alienations viz., the mortgage and the sale were also impeached and the plaintiff prayed for recovery of possession of all the property with mesne profits, on behalf of the sub¬tarwad. The 1st defendant contested. According to him Ext. B was a valid family arrangement supported by consideration and necessity. He further contended that the plaintiff was not entitled to sue on behalf of the sub-tarwad as the same had become divided in the year 1107. The courts below decreed the suit as prayed for, holding that the Nischayapatrom and the subsequent alienations were not binding on the sub¬tarwad, as the same were unsupported by consideration and tarwad necessity.

2. The concurrent finding that the Nischayapatrom is not supported by consideration and necessity does not call for interference. The only point that arises for decision is whether the plaintiff is entitled to sue on behalf of the sub-tarwad which had become partitioned long before the suit or whether she is entitled to recover only her 1/4th share. The lower appellate court decided this question against the appellant on the strength of the decision of the High Court of Travancore in Kochupennu v. Rukmani Amma (1946 TLR 948). Before considering the correctness of this decision it is necessary to refer to certain earlier decisions, especially as the learned judges wrongly assumed that the point was not covered by any previous decision. Kumaran Kumaran v. Krishnan Kauli (16 TLR 79) is one of the earliest decisions of the High Court of Travancore holding that when a Marumakkathayam tarwad became divided, the status of division applies to properties left out by mistake at the time of partition. Their Lordships observed:

"We think we should be acting against the intention of the parties and introducing confusion if we assume the fiction of an undivided tarwad merely because one item or even more of common property has been by mistake left out in the division. Both principle and convenience require that division should be enforced with regard to the property so discovered".

This decision was followed in Kumaran Ramakrishnan v. Vikraman Sridharan (26 TLR 202) and Anantha Nangeli v. Padmanabhan Narayanan (29 TLR 125). The judgment in the latter case refers to two unreported decisions of the High Court of Travancore in one of which viz., A.S. No. 386 of 1087 it was held that the principle laid down in 16 TLR 79 applied to property left out by mistake or even left in common at the time of partition. This question again came up before the Travancore High Court in Lekshmi Pillai v. Parameswara Iyer (8 TLT 722). The view taken in the earlier